Responding to a Motion to Change Domicile

There are many reasons your child’s other parent may want to move. These could include finding a better job or a safer neighborhood, or to be closer to friends and family. However, the move could make parenting time arrangements difficult. If your child’s other parent has asked the judge for permission to move, you may be worried about how this could affect the time you spend with your child. You may be wondering what you can do to oppose the move or ask for a different parenting time schedule.

In many cases the other parent needs the judge’s permission to move. If so, you also have the chance to oppose the move.

The other parent needs the judge’s permission to move if:

• The other parent wants to move more than 100 miles from where the child lived when your family court case started and you have joint legal custody; or
• The other parent wants to move out of state, no matter what kind of custody you have.

Moving within Michigan

The 100-Mile Rule

The 100-mile rule may help you if you oppose the other parent’s move. It requires the other parent to get the judge’s permission to move the child more than 100 miles from where the child lived at the time your family court case was filed. Your family court case is the case in which the custody order was issued.

The 100-mile rule works both ways. You would also need the judge’s permission to move, even if your child spends most of their time with the other parent.

The 100-mile rule applies UNLESS:

• The other parent has sole legal custody (However, they must continue to comply with the parenting time provisions of the court order.)
• You agree to the move
• You and the other parent were already living more than 100 miles apart when your family court case started or
• The other parent’s new home will be closer to your residence than before the move

How the Judge Decides Whether to Allow the Move

After the other parent files a motion to change your child’s residence, there will be a hearing. At the hearing, the judge will consider whether:

• The move will improve the other parent’s and your child’s quality of life
• Each parent has followed the parenting time provisions of the court order
• The other parent is using the move to limit your parenting time
• New parenting time arrangements will allow you and your child to maintain a similar relationship
• You are fighting against the move just to pay less child support
• The other parent is moving to escape domestic violence

These are often called the 100-mile rule factors. However, the judge also uses the same factors to decide closer, out-of-state moves when the parents have joint legal custody.

The Best Interests of the Child

The judge may also consider the best interests of the child factors before deciding whether to allow the other parent to move with the child. Read the “The Best Interests of the Child Factors” section below for more about when this would happen and what it means.

Moving outside Michigan

When the Judge's Approval Is Required

All Michigan custody orders must state that the child’s domicile (legal residence) can’t be moved from Michigan without the judge’s approval. This applies if you have sole or joint custody. It applies even if you agree to the other parent’s move.

In general, if the other parent wants to move your child out of Michigan, the other parent is supposed to file a motion to get the judge’s approval before moving. It doesn’t matter if the other parent is moving 25 miles away or 2,500 miles away.

How the Judge Decides Whether to Allow the Move

The other parent must file a motion to ask for the judge’s permission to move your child out of Michigan. You have the opportunity to respond to the motion. What the judge does next will depend on the custody order in your case.

If the other parent has sole legal custody, the judge doesn't need to consider the 100-mile rule factors. If the other parent also has sole physical custody, the judge must grant the motion. However, if the other parent has sole legal custody but you have joint physical custody, the judge will need to consider whether the move would cause a change in custody. If the judge decides the move would result in a custody change, then they must decide whether the move and custody change would be in the child's best interests. For a best interests decision, the judge considers the best interests of the child factors. To learn more about changes in custody and the best interests factors, read Custody and Parenting Time and The "Best Interests of the Child" Factors.

If you have joint legal custody, there will be a hearing. At the hearing the judge will consider the 100-mile rule factors to decide whether to allow the move. The factors apply even if the proposed move is less than 100 miles away. The judge may also consider the best interests of the child factors before deciding whether to allow the move. Read the “The Best Interests of the Child Factors” section directly below to learn about when this would happen and what it means.

The Best Interests of the Child Factors

If the judge decides the 100-mile rule factors favor the other parent’s move, the judge must then look at whether the move would cause a change in custody. If so, the judge must decide if the move is in your child’s best interests. At a hearing, both you and your child’s other parent will have the chance to explain why the move would or wouldn’t be good for your child.

For a best interests decision, the judge considers the best interests of the child factors. The burden of proof is clear and convincing evidence. This is the level of evidence the other parent must show to convince the judge that the move and a change in custody are in the child's best interests. To learn more about changes in custody and the best interests factors, read Custody and Parenting Time and The “Best Interests of the Child” Factors.

How Do I Object to the Other Parent’s Request to Move?

File a response to the other parent’s motion to tell the judge you oppose the move. You can use our Do-It-Yourself Response to Motion to Change Domicile/Residence tool to prepare your response. File it with the court at least three days before the hearing. You must mail it to the other party at least five days before the hearing, or give it to them in person at least three days before the hearing.

The judge will schedule a hearing where the other parent can talk about why they want to move. You will get a chance to respond and say why you don't agree with the proposed move. You will each have the chance to present evidence regarding the 100-mile rule factors and the best interests of the child factors, if they apply.

The other parent is supposed to follow the current parenting time schedule unless the judge changes it. The proposed move might make the current parenting time schedule difficult or impossible to follow. If the other parent violates the current parenting time schedule, you can ask the judge to change the arrangements and/or order makeup parenting time.

Finding a Lawyer

You might decide you want a lawyer to help you. If you have a low income, you may qualify for free legal services. Whether you have a low income or not, you can use the Guide to Legal Help to find lawyers in your area. If you are not able to get free legal services but can’t afford high legal fees, consider hiring a lawyer for part of your case instead of the whole thing. This is called limited scope representation. To learn more, read Limited Scope Representation (LSR): A More Affordable Way to Hire a Lawyer. To find a limited scope lawyer, follow this link to the State Bar of Michigan lawyer directory. This link lists lawyers who offer limited scope representation. You can narrow the results to lawyers in your area by typing in your county, city, or zip code at the top of the page. You can also narrow the results by topic by entering the kind of lawyer you need (divorce, estate, etc.) at the top of the page.